Wednesday, 1 August 2012

Overtime Pay and Mobile Technology

In that piece, the author essentially argued that, “Mobile technology has helped employers squeeze more productivity out of their employees, but all those hours of work while technically off the clock leaves them open to lawsuits over unpaid overtime.”

Here is why, from an Ontario employment perspective, the CBC author may be correct.

The Issue

The issue presented in the story is the use of technology “after hours.” Many employers are providing their employees with a range of technology including smartphones, laptops, tablets, and a myriad of other gadgets. The question is: if one of those employees receives an email from her boss after hours, is the employee “working” and should she be compensated for that work? According to the CBC piece, the answer is “probably.”

The story points to two examples of employers limiting employee’s ability to access technology after hours:

In 2011, German carmaker Volkswagen decided to block emails from company-issued smartphones 30 minutes after their shift ends. The phones only become unblocked when the next shift begins.

In December of 2011, the government of Brazil passed a law stating that employees who answer work-related emails on their phones after hours are entitled to overtime, under the assumption that an email to a worker is equal to an order to work from a superior.

I must confess to having to agree with the logic of the Brazilian government.

What does Ontario Law Say?

First, it should be noted there are two different employment-law regimes that govern workers in Ontario. Some workers are governed by the federal Canada Labour Code (employees of banks, railroads, and airlines are some examples), whereas most others are captured under the Ontario Employment Standards Act, 2000 [“the ESA”.] This post will exclusively canvass the provisions under the ESA, although similar provisions would apply in the case of the Canada Labour Code.

It is important to note that the ESA sets minimum standards for employment relations. Although employees and employers are free to contract for whatever terms they may like, they cannot contract out of the minimum standards prescribed by the ESA.

It is equally important to note that some provisions of the Employment Standards Act do not apply to all employees. Ontario Regulation 285/01 enumerates a host of employees to whom the following minimum standards and rules do not apply. Among those employees are firefighters, managers and supervisors, construction workers, landscape gardeners, those who install and maintain swimming pools, and superintendents of residential buildings if they reside in the building. Most professionals, such as yours truly, are also exempted.

Maximum Hours of Work in a Week

One of the minimum standards prescribed by the ESA is the maximum number of hours one can work in a week. Paragraph 17(1)(b) of the ESA prescribes that, “no employer
shall require or permit an employee to work more than 48 hours in a work week.”

As might not be surprising, several exemptions are permitted by the ESA, too lengthy and numerous to canvass in this post. Interested readers are encouraged to consider the ESA itself.

Overtime Pay

The requirement to pay an employee “overtime pay” is set out in Part VIII of the ESA. Specifically, section 22 of the ESA prescribes that, “An employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold.” Again, exceptions can apply.

The Challenge

The CBC article hints at the prospect of class action lawsuits against employers. The challenge, however, as I see it will be in defining the word “work”. Defining the word “require” will probably be no less difficult.

Is reading an email “working?” How about responding to it? Is the employee actually required to respond to that 10pm email – or does she only feel somehow compelled? These issues are yet to be fully considered by the court.

The Argument

The interesting part, however, is that paragraph 17(1)(b) of the ESA prescribes that, “Subject to subsection.. (3), no employer shall… permit
an employee to work more than 48 hours in a work week.”

Is providing a smartphone with 24/7 connectivity “permitting” an employee to work more than 48 hours in a week – or is it only “enabling” her? Does it make a difference or is same simply semantics?

My sense is that providing the technology to employees comes with an expectation that the employee will be on call as needed. Perhaps that is only my experience as an ‘eat what you kill' professional, but I doubt my colleagues in other professions would disagree. What is the point of having a smartphone if one cannot use it outside the office, and therefore outside of ‘working hours?’ I appreciate those who travel for business clamouring that their phone is required while out of the office, but I ask this question: how many of you then turn that phone off at 5:00, not to look at it until 9:00 the next morning?

If the provision of the technology comes with an expectation, and I submit that it does, then employers are permitting their employees to work more than 48 hours in a week. Certainly most are working more than 44 hours in a week.

Hence the question: If employees are working more than 44 hours in a week, answering emails, etc. are they entitled to overtime pay?

My answer is “probably.”

If there is a representative plaintiff out there reading this and saying ‘hey that’s me!’ I would certainly be happy to hear more about your situation.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.